Skyes and Skyes (Child support) - [2023] AATA 2148

Skyes and Skyes (Child support) [2023] AATA 2148 (29 June 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/BC025246
APPLICANT:  Mr Skyes
OTHER PARTIES:  Child Support Registrar
Ms Skyes

TRIBUNAL:Senior Member S Trotter
DECISION DATE: 29 June 2023
DECISION:

The decision under review is varied so that for the period 1 July 2022 to 31 December 2025, the annual rate of child suport payable by Mr Skyes is increased by $1,000.

CATCHWORDS

CHILD SUPPORT – departure determination – school fees for child – ground for departure established – decision under review varied

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

Mr Skyes and Ms Skyes are the parents of [Child 1] (born 2006), [Child 2] (born 2008) and [Child 3] (born 2011) (the children). A child support case was registered with Services Australia – Child Support (Child Support) in relation to the children on 16 July 2014. The children are currently recorded as being in the 100% care of Ms Skyes.
The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of child support payable. It uses a formula which contains variables such as the parents’ child support incomes and their percentages of care of the children. The Act also provides for a departure from the administrative assessment (commonly termed a change of assessment) in certain circumstances. Departure determinations can include varying components of the child support formula such as a parent’s child support income (which incorporates a parent’s adjusted taxable income) or varying the annual rate of child support.
Notably, a previous departure determination was made following an August 2020 application by Ms Skyes. Ultimately by decision of this Tribunal (differently constituted) of 26 October 2021, a departure determination was made increasing the child support liability payable by Mr Skyes by $2,500 per annum for the period 1 January 2021 to 30 June 2022. In making that decision, it was determined that as the costs of maintaining the children were significantly affected on account of private school fees for [Child 2] for private education as expected by the parents and on account of costs for [Child 3] and [Child 2] for essential orthodontic treatment, that Mr Skyes contribute to the orthodontic costs but that he did not have capacity to also contribute to the cost of [Child 2]’s school fees.
A subsequent change of assessment application was lodged by Ms Skyes on 9 May 2022 seeking a seeking a change to the administrative assessment of child support from 30 June 2022 on account of [Child 2]’s private school fees.
On 20 August 2022, Child Support decided that a reason had been established to depart from the administrative assessment of child support on the basis that the costs of maintaining the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Skyes and Skyes (Child support)

Details

AGLC: Skyes and Skyes (Child support) [2023] AATA 2148
Case: [2023] AATA 2148
Decision Date: 29 June 2023

CaseChat Overview and Summary

The case of *Skyes and Skyes* concerned an application for a departure determination under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant sought to vary the child support assessment to account for school fees incurred for the child. The Senior Member of the court was required to determine whether the grounds for departure were established, and if so, whether to make a departure determination.

The central legal issue before the court was whether the existing child support assessment did not make proper or adequate provision for the child's necessary expenses, specifically in relation to the costs of private schooling. This required the court to consider the relevant provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) that permit departure from a child support assessment in certain circumstances, including where the costs of education are significantly different from what would be expected.

The Senior Member found that the ground for departure was established. The court reasoned that the costs associated with the child's private schooling were a necessary expense that was not adequately provided for under the current assessment. The court applied the principles outlined in the *Child Support (Registration and Collection) Act 1988* (Cth) concerning departure from assessments, focusing on the necessity and reasonableness of the expense in question.

The decision under review was varied to reflect the costs of the child's schooling.

Orders